R v William McLaughlin Martinez - Ruling

¶ Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 1 of 7 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 74/2008 3 4 THE QUEEN 5 6 V 7 8 WILLIAM MCLAUGHLIN MARTINEZ 9 10 11 Appearances: For the Crown: 12 Ms. Cheryll Richards Q.C., Solicitor General, and 13 Crown Counsel, Ms. Tanya Lobban 14 15 For the Defendant: 16 Mr. Mark Tomassi instructed by Mr. Nicholas Dixey 17 of Mourant Ozannes 18 19 20 Before: The Honourable Mr. Justice Charles Quin 21 Heard: 17th – 19th January 2011 22 23 RULING 24 25 26

¶ [1] This is an application by the Crown for leave to call Jason Hinds (“Mr. Hinds”), 27 a Crown witness, by way of a live television link, pursuant to s.37(1)(a) of the 28 Evidence Law 2007 Revision, which reads: 29 “A person other than an accused person may give evidence through a 30 live television link in proceedings to which subsection (2) applies if (a) 31 the witness is outside the Island or (b) if the witness is a child, or is to be 32 cross examined following the admission under s.39 of a video recording 33 of testimony from him and the offence to which is one to which 39(2) 34 applies, but such evidence may not be given without the leave of the 35 Court.” 36 37

¶ [2] Section 37(2) reads: “This section applies to (a) trials on Indictment.” 38 Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 2 of 7 2

¶ [3] In aid of its application the Crown has produced a witness statement from Mr. 1 Hinds, dated the 15th January 2011 in which Mr. Hinds states: 2 “I also strongly believe that my life would be in danger if I was to return 3 to the Cayman Islands because I heard a lot of things in prison about 4 witnesses getting attacked while in witness protection.” 5 Mr. Hinds went on to state: 6 “I also told Mr. Wright [police officer] if there was any other way for 7 giving evidence I would but I will not return to Cayman.” 8 9 Mr. Hinds says he has to take care of his own two young children, aged 4 and 7, 10 by himself. Mr. Hinds also stated in his Statement that his own father was a sick 11 man. 12

¶ [4] At the suggestion of the Defence, and with the consent and active support and 13 participation of the Solicitor General, the Court directed Chief Inspector Peter 14 Kennett to travel to Jamaica to see if Mr. Hinds would be prepared to change his 15 mind and travel to Cayman to give his evidence in the courtroom. The Court also 16 directed Chief Inspector Kennett to tell Mr. Hinds that the Cayman authorities 17 would provide him with witness protection for the whole time he was in the 18 Cayman Islands, and, if necessary, would make childcare arrangements, either in 19 Jamaica or in Cayman, for the care of his two young children. 20

¶ [5] Mr. Hinds was due to give live television link-evidence on Tuesday the 18th 21 January 2011, but was not present at the designated studio in Jamaica at the 22 scheduled time. It transpired that, unexpectedly, he had to take his younger son to 23 hospital, and therefore was not available to be contacted. 24 Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 3 of 7 3

¶ [6] Chief Inspector Kennett eventually made contact with Mr. Hinds, who maintains 1 that he is adamant that he will not return to Cayman. Chief Inspector Kennett 2 said that Mr. Hinds told him that he is fearful of something happening to him, 3 despite the reassurances he received, and that Mr. Hinds quoted the Fernando- 4 Martin attempted murder case as an example. In addition Mr. Hinds told Chief 5 Inspector Kennett that there is strong family pressure for him not to return to give 6 live evidence. Mr. Hinds told Mr. Kennett that he remains perfectly willing to 7 give evidence via the video link. 8 Defendant’s Position 9

¶ [7] The Defence objects to Mr. Hinds’ evidence being given by video link. The 10 Defence submits that Mr. Hinds is the main Crown witness. The Defence further 11 submits that it received no notice of the application and no written keleton 12 arguments, and therefore had no opportunity to prepare written submissions 13 attacking the application. 14

¶ [8] However, the main thrust of the Defence’s submission is that it was not fair to the 15 Defendant and will mean that the Defendant will not have a fair trial. 16

¶ [9] The Defendant’s counsel, Mr. Tomassi, states that he cannot cross examine a 17 television set. Mr. Tomassi submits that neither he nor the jury can see the 18 witness as you would see a witness in the witness box. A consequence of this, 19 according to Mr. Tomassi, is that it severely impacts his conduct of the 20 Defendant’s case. 21 Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 4 of 7 4

¶ [10] The Defence also highlights the fact that this is a re-trial of their client and that 1 the witness, Mr. Hinds, was an accomplice, who was within yards of the 2 deceased at the time of the murder. 3

¶ [11] In addition, the Defence submits that Mr. Hinds has been given very special 4 treatment from the moment he was arrested. The Defence submits that, pursuant 5 to their instructions, the witness, Mr. Hinds, is the murderer and they do not 6 accept the reasons given by Mr. Hinds for his refusal to come to Cayman and 7 give live testimony. 8

¶ [12] The Defence submits that the childcare issues which Mr. Hinds raised can be 9 taken care of. The Defence further submits that there was no evidence that the 10 suggestion of fear, raised by Mr. Hinds, was instigated by the Defendant or the 11 Defendant’s associates. 12

¶ [13] Finally, the Defence submits that if the Court accedes to the Crown’s application, 13 it will allow the witness, Mr. Hinds, to give evidence in a consequence-free 14 environment, which will be prejudicial to the Defendant. 15

¶ [14] The Defence submits that s.37(1)(a) of the Evidence Law applies to routine 16 witnesses such as expert witnesses who are detained overseas and unable to 17 travel to the Cayman Islands. The Defence submits that s.37(1)(a) should not be 18 used in cases of this nature where the witness is the main prosecution witness and 19 also, in the eyes of the Defence, more than an accomplice but actually the 20 perpetrator of the murder. 21 Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 5 of 7 5

¶ [15] The Defence submits that leave should not be granted, save in the most 1 exceptional circumstances, and the facts and circumstances in relation to this 2 application do not merit such leave being granted. 3 Crown’s Position 4

¶ [16] The Solicitor General says that s.37(1)(a) is not limited to any kind of witness 5 and is certainly not limited to expert witnesses. The Solicitor General argues that 6 the Court can seek some assistance and guidance from Part A of the Criminal 7 Justice Act 2003 in the United Kingdom, and in particular s.51(6) and (7)(a) as to 8 which circumstances the Court should consider in an application under our s.37 9 of the Evidence Law. Section 51(7)(a) of the Criminal Justice Act is conveniently 10 set out at paragraph D21.35 of Blackstone’s Criminal Practice 2011: 11 “(a)the availability of the witness 12 (b) the need for the witness to attend in person 13 (c) the importance of the witness’ evidence to the proceedings 14 (d) the views of the witness 15 (e) the suitability of the facilities at the place where the witness would 16 give evidence through a live link 17 (f) whether a direction might tend to inhibit any party to the proceedings 18 from effectively testing the witness’ evidence.” 19 20

¶ [17] The Solicitor General submits that there is no different test for Mr. Hinds than 21 there would be for any other witness – be it an expert or a non-expert. The 22 Solicitor General submits that the evidence cannot be lost to the case or to the 23 Court, and that in these circumstances, it is in the interests of justice for this 24 witness to be allowed to give his evidence via the video link. 25 Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 6 of 7 6

¶ [18] The Solicitor General submits that the Defendant will not be prejudiced. 1 Furthermore, she submits that the interests of the victim will be acknowledged or 2 realised by the receipt of Mr. Hinds’ evidence. The Solicitor General further 3 submits that the Crown is not trying to have his evidence read in. The Solicitor 4 General adds that the Defence will be able to hear and see Mr. Hinds give his 5 evidence and will be able to cross examine him on any aspect of his evidence, 6 including his reasons for not being able to attend Court, and give his evidence 7 from the witness box. 8 Conclusion 9

¶ [19] Clearly the power exists for the Court to grant the application of the Crown to 10 admit Mr. Hinds’ evidence by video link, pursuant s.37(1)(a) as read with 11 s.37(2)(a) of the Evidence Law. 12

¶ [20] In R(D) v. Camberwell Green Youth Court [2005] 1 WLR 393 the House of 13 Lords held that the use of live television links is compatible with the right of the 14 accused to a fair trial under the Convention for the Protection of Human Rights 15 and Fundamental Freedoms. 16

¶ [21] To adopt the words of Baroness Hale of Richmond, the Cayman Islands 17 legislators have modified and adopted the domestic legal system to meet modern 18 conditions. Furthermore as Baroness Hale stated at paragraph 49 on page 408 of 19 the Judgment: 20 “The accused can see and hear it all. The accused has every opportunity 21 to challenge and question the witness against him at the trial. The only 22 thing missing is the face-to-face confrontation but the appellants accept 23 that the convention does not guarantee a right to face to face 24 confrontation.” 25 Ruling – Re Crown’s Application for video link evidence. R v. William McLaughlin Martinez. Ind. 74/2008. Coram: Quin J. Date: 19.1.11 Page 7 of 7 7 1

¶ [22] To adopt the words of s.51(4) of the Criminal Justice Act (2003 Revision), I find 2 that it is in the interests of the efficient or effective administration of the Grand 3 Court for Mr. Hinds to give evidence in the proceedings through a live link. 4

¶ [23] I also find, pursuant to the House of Lords decision in R(D) v. Camberwell 5 Green Youth Court, that even though the Defendant is deprived of the usual face 6 to face confrontation, there is no material before me to support the contention 7 that the Defendant will not be able to have a fair trial. 8

¶ [24] Accordingly, I accede to the Crown’s application. 9 10 11 12 13 14 Dated this the 19th day of January 2011 15 16 17 18 Honourable Mr. Justice Charles Quin 19 Judge of the Grand Court 20